Citation Nr: 0732348
Decision Date: 10/12/07 Archive Date: 10/23/07
DOCKET NO. 04-02 287 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Boise,
Idaho
THE ISSUES
1. Entitlement to an increased rating for service-connected
enucleation of the left eye, currently evaluated as 10
percent disabling.
2. Entitlement to an increased (compensable) rating for
service-connected conjunctivitis.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Nathaniel J. Doan, Associate Counsel
INTRODUCTION
The veteran had active service from December 1955 to December
1958.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a February 2003 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Boise, Idaho, which denied the benefits sought on appeal.
The veteran's appeal was previously before the Board in July
2006 and it was remanded at that time to obtain additional
medical records, including the report of a June 2004 VA eye
examination, and to provide another VA examination. As
discussed more fully below, after review of the claims file,
the Board finds that the veteran's claims are ready for
adjudication upon the merits.
FINDINGS OF FACT
1. All evidence necessary to decide the claims on appeal has
been obtained; the veteran has been provided notice of the
evidence necessary to substantiate his claims and has been
notified of what evidence he should provide and what evidence
VA would obtain; there is no indication that the veteran has
evidence pertinent to his claims that he has not submitted to
VA.
2. Medical evidence of record indicates that the veteran
cannot wear his artificial (prosthetic) left eye.
3. The medical evidence of record indicates that the veteran
does not currently have active conjunctivitis and that there
is no active pathology or residual defects of previous
conjunctivitis of the right eye or medical evidence showing
conjunctivitis of the left eyelid.
CONCLUSIONS OF LAW
1. The criteria for a 20 percent rating for service-
connected enucleation of the left eye have been met, which is
the maximum scheduler rating after deducting the degree of
disability existing at the time of entrance into service
under the provisions of 38 C.F.R. § 4.22. 38 U.S.C.A. §§
1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1-
4.16, 4.84a, Diagnostic Code 6066.
2. The criteria for a compensable rating for service-
connected conjunctivitis have not been met. 38 U.S.C.A. §§
1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1-
4.16, 4.84a, Diagnostic Code 6018.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veterans Claims Assistance Act
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA). See Pub. L.
No. 106-475, 114 Stat. 2096 (2000), codified at 38 U.S.C.A.
§§ 5102, 5103, 5103A, 5107 (West 2002). The VCAA provides,
among other things, for notice and assistance to VA claimants
under certain circumstances. VA has issued final rules
amending its adjudication regulations to implement the
provisions of the VCAA. See generally 38 C.F.R. §§ 3.102,
3.156(a), 3.159, and 3.326(a)). The intended effect of these
regulations is to establish clear guidelines consistent with
the intent of Congress regarding the timing and the scope of
assistance VA will provide to a claimant who files a
substantially complete application for VA benefits or who
attempts to reopen a previously denied claim.
In order to be consistent with 38 U.S.C.A. § 5103(a) and 38
C.F.R. § 3.159(b), VCAA notice must: (1) inform the claimant
about the information and evidence not of record that is
necessary to substantiate the claim; (2) inform the claimant
about the information and evidence that VA will seek to
provide; (3) inform the claimant about the information and
evidence the claimant is expected to provide; and (4) request
or tell the claimant to provide any evidence in the
claimant's possession that pertains to the claim. This
fourth element of the notice requirement comes from the
language of 38 C.F.R. § 3.159(b)(1).
During the pendency of this appeal, on March 3, 2006, the
United States Court of Appeals for Veterans Claims (Court)
issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which
held that the VCAA notice requirements of 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements
of a service connection claim. Those five elements include:
1) veteran status; 2) existence of a disability; (3) a
connection between the veteran's service and the disability;
4) degree of disability; and 5) effective date of the
disability. The Court held that, upon receipt of an
application for a service-connection claim, 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating or is necessary to substantiate the elements
of the claim as reasonably contemplated by the application.
Additionally, this notice must indicate that a disability
rating and an effective date for the award of benefits will
be assigned if service connection is awarded.
The Board finds that VA has met these duties with regard to
the claims adjudicated on the merits in this decision. There
is no issue as to providing an appropriate application form
or completeness of the application. Subsequent to the
Board's July 2006 remand, the veteran was provided a VCAA
notification letter in July 2006. This notice fulfilled the
provisions of 38 U.S.C.A. § 5103(a). The veteran was
informed about the information and evidence not of record
that is necessary to substantiate his claims; the information
and evidence that VA will seek to provide; the information
and evidence the claimant is expected to provide; and to
provide any evidence in his possession that pertains to the
claims. In addition, pursuant to the Board's July 2006
remand, the notification letter informed the veteran to
advise the Appeals Management Center (AMC) where the veteran
had a June 2004 VA eye examination in order for the AMC to
obtain the medical records. In addition, this letter
provided the veteran notice regarding the evidence and
information needed to establish disability ratings and
effective dates, as outlined in Dingess.
In Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini
II), the Court held, in part, that a VCAA notice, as required
by 38 U.S.C. § 5103(a), must be provided to a claimant before
the initial unfavorable agency of original jurisdiction (AOJ)
decision on a claim for VA benefits. In this case, the VCAA
letter noted above was issued pursuant to a Board remand, and
therefore, after the RO decision that is the subject of this
appeal. The Board is cognizant of recent Federal Circuit
decisions pertaining to prejudicial error. Specifically, in
Sanders v. Nicholson, 487 F.3d 881 (2007), the Federal
Circuit held that any error by VA in providing the notice
required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1)
is presumed prejudicial and that once an error is identified
by the Court, the burden shifts to VA to demonstrate that the
error was not prejudicial. The Federal Circuit reversed the
Court of Appeals for Veterans Claims' holding that an
appellant before the Court has the initial burden of
demonstrating prejudice due to VA error involving: (1)
providing notice of the parties' respective obligations to
obtain the information and evidence necessary to substantiate
the claim: (2) requesting that the claimant provide any
pertinent evidence in the claimant's possession; and (3)
failing to provide notice before a decision on the claim by
the agency of original jurisdiction. (Emphasis added.) See
also Simmons v. Nicholson, 487 F.3d 892 (2007).
In this case, the timing error with respect to the notice
requirements noted above raises a presumption of prejudicial
error but such error is rebutted by the record. The AMC
cured the timing defect by providing complete VCAA notice
together with re-adjudication of the claims, as demonstrated
by the June 2007 supplemental statement of the case.
Prickett v. Nicholson, 20 Vet. App. 370, 376-78 (2006)
(validating the remedial measures of issuing fully compliant
VCAA notification and re-adjudicating the claim in the form
of a statement of the case to cure timing of notification
defect).
The Court has held that a supplemental statement of the case
that complies with applicable due process and notification
requirements constitutes a readjudication decision. See
Mayfield v. Nicholson, 20 Vet. App. 537, 541-42 (2006)
(Mayfield III); see also Prickett, supra (holding that a
statement of the case that complies with all applicable due
process and notification requirements constitutes a
readjudication decision). As the supplemental statement of
the case complied with the applicable due process and
notification requirements for a decision, it constitutes a
readjudication decision. Accordingly, the provision of
adequate notice followed by a readjudication "cures" any
timing problem associated with inadequate notice or the lack
of notice prior to an initial adjudication. Mayfield III, 20
Vet. App. at 541-42, citing Mayfield v. Nicholson, 444 F.3d
1328, 133-34 (Fed. Cir. 2006) (Mayfield II).
Thus, the presumption of prejudice against the veteran
because of the timing of the notice is rebutted. See
Sanders, supra. The veteran has been provided the
opportunity to respond to VA correspondence and over the
course of the appeal has had multiple opportunities to submit
and identify evidence. Furthermore, the veteran has been
provided a meaningful opportunity to participate effectively
in the processing of his claims by VA.
While the veteran does not have the burden of demonstrating
prejudice, it is pertinent to note that the evidence does
not show, nor does the veteran contend, that any notification
deficiencies, either with respect to timing or content, have
resulted in prejudice. Further, regarding an increased
rating for enucleation of the left eye, the veteran's
contention on appeal was that his disability warranted an
additional 10 percent rating due to his inability to wear a
prosthetic eye. The instant decision grants this benefit
sought.
The Board also finds that all necessary assistance has been
provided to the veteran. The evidence of record includes VA
medical records, including a January 2007 VA examination and
an April 2007 addendum to the January 2007 examination
report. After review of the examination report, the Board
finds that it provides competent evidence regarding the
current severity of the service-connected disabilities on
appeal. It is pertinent to note that the veteran's main
contention on appeal with regard to his left eye is that he
is unable to wear his prosthetic eye. The instant decision
grants this benefit.
As noted above, subsequent to the Board's July 2006 remand,
the veteran was informed to send in additional information
regarding a June 2004 VA examination; the veteran did not
send in any additional information. Further, the AMC
associated with the claims file additional records from the
Boise Idaho VA Medical Center, including medical treatment
records dated in June 2004. See 38 C.F.R. § 3.159(c). These
records do not include any VA eye examinations. As the AMC
sought additional information regarding this examination from
the veteran and obtained the VA medical records from the VA
medical center from which the veteran seeks treatment, the
Board finds that the AMC fulfilled the directives of the
Board remand in this regard and that an additional remand to
again seek to obtain additional medical records is not
required. See Stegall v. West, 11 Vet. App. 268, 271 (1998).
In view of the foregoing, the Board finds that VA has
fulfilled its duty to notify and assist the veteran in the
claims under consideration. Adjudication of the claims at
this juncture, without directing or accomplishing any
additional notification and/or development action, poses no
risk of prejudice to the veteran. Bernard v. Brown, 4 Vet.
App. 384, 394 (1993).
Law and Regulations
Disability evaluations are determined by the application of
the schedule of ratings which is based on average impairment
of earning capacity. See 38 U.S.C.A. § 1155. Separate
diagnostic codes identify the various disabilities. In order
to evaluate the level of disability and any changes in
condition, it is necessary to consider the complete medical
history of the veteran's disability. See Schafrath v.
Derwinski, 1 Vet. App. 589, 594 (1991). While the veteran's
entire history is reviewed when making a disability
determination, where service connection has already been
established and increase in the disability rating is at
issue, as in this case, it is the present level of the
disability that is of primary concern. Francisco v. Brown, 7
Vet. App. 55 (1994).
It is the defined and consistently applied policy of VA to
administer the law under a broad interpretation, consistent,
however, with the facts shown in every case. Any reasonable
doubt regarding the degree of disability is resolved in favor
of the veteran. See 38 C.F.R. § 4.3. The regulations also
provide that where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. 38 C.F.R. § 4.7.
The Board notes that the evaluation of the same disability
under various diagnoses is to be avoided. That is to say
that the evaluation of the same manifestation under different
diagnoses, a practice known as "pyramiding," is to be
avoided. See 38 C.F.R. § 4.14. The critical inquiry in
making such a determination is whether any of the
symptomatology is duplicative or overlapping. See Esteban v.
Brown, 6 Vet. App. 259 (1994).
The best distant vision obtainable after best correction by
glasses will be the basis of rating, except in cases of
keratoconus in which contact lenses are medically required.
38 C.F.R. § 4.75.
Combined rating for disabilities of the same eye should not
exceed the amount for total loss of vision of that eye unless
there is an enucleation or a serious cosmetic defect added to
the total loss of vision. 38 C.F.R. § 4.80.
Chronic conjunctivitis is rated under Diagnostic Code 6018,
located in 38 C.F.R. § 4.84a. Active conjunctivitis with
objective symptoms warrants a 10 percent rating. Healed
conjunctivitis is rated on the basis of residuals; if there
are no residuals that disability is noncompensable.
Regarding the veteran's left eye, the Board notes that
blindness in one eye, have only light perception with vision
of the other eye being 20/40 warrants a 30 percent rating.
See 38 C.F.R. § 4.84a, Diagnostic Code 6070. Anatomical loss
of one eye with vision of the other eye being 20/40 warrants
a 40 percent rating.
The 30 percent and 40 percent ratings noted above also
entitle the veteran to special monthly compensation. The 40
percent rating entitles the veteran to an additional 10
percent rating if the artificial eye cannot be worn. See
notes 5 and 6 after Diagnostic Code 6079, located in
38 C.F.R. § 4.84a.
Factual Background
The record indicates that when the veteran was a child his
left eye was severely injured. When he entered service he
was blind and had phthisis bulbi of the left eye. During
service, his left eye was removed and the veteran was
provided with a prosthetic eye. In a December 1960 rating
decision, the RO granted service connection for enucleation
of the left eye and for conjunctivitis. Service connection
was granted based on the aggravation of the veteran's pre-
existing left eye disability. Service connection for
conjunctivitis was based on a finding in a December 1960 VA
examination that the palpebral (pertaining to the eyelid)
conjunctiva was "quite injected." The Board notes that in
a November 2003 rating decision the RO found that the
December 1960 rating decision contained clear and
unmistakable error in that it did not grant special monthly
compensation for the anatomical loss of the left eye.
Therefore, the RO granted special monthly compensation with
an effective date back to the veteran's original claim for
service connection, September 1960.
In June 2002, the veteran filed the claim for an increased
rating for service-connected eye disabilities. The veteran
contended that the left eye socket rejects the prosthetic
eye. If he wears it, he reported, matter builds up and
creates a ridge on the eye and the eyelid will become
irritated. The veteran also noted that there was a lot of
congestion when he wears the prosthetic eye. In additional
letters, the veteran noted that he is able to wear the eye
for brief periods of time, but then must take it out. The
veteran asserted that having to take the eye out when out in
public is a "cosmetic nightmare." He added, in essence,
that his inability to wear the prosthetic eye for long
periods of time constituted an inability to wear the
prosthetic eye, within the meaning of the applicable rating
criteria.
In a June 2002 VA treatment record, a clinician noted that
the veteran had no left eye. The conjunctiva was noted to be
clear. The claims file also contains the record from an
April 2006 optometry examination. The veteran had visual
acuity of 20/20 in the right eye. His right eyelid was
within normal limits but there was a small notch on the
center of the left eyelid. The conjunctiva was clear and
quiet, both on the right and left. There was some discharge
on the left.
As directed by the Board's July 2006 remand, the veteran
underwent a January 2007 VA examination. The examiner
reported that the veteran had cataract surgery of the right
eye in 1996. The Board notes that the veteran is not service
connected for this disability and he has not asserted that
this disability is service connected.
The examiner noted that after the veteran wears the left eye
prosthesis for 4 to 6 hours it becomes intolerable and must
be removed. After 4 to 6 hours of prosthetic wear, the
veteran's subjective complaints included dry socket,
conjunctivitis "congestion" within the orbit producing
mucoid discharge irritating the eyelids rubbing over the
prosthesis, causing ulceration of the eyelid margins. The
clinician added that the veteran often stays home isolating
himself socially because of the inability to wear the
prosthetic eye.
On the day of the examination, the veteran had been wearing
the prosthesis for at least 4 hours and was anxious to remove
it. Upon physical examination, with the prosthesis removed,
the examiner noted that both lid margins were normal, the
palpebral conjunctiva was normal appearing and the upper
tarsal conjunctiva was without signs of inflammation such as
papillae. The orbit was light pink without signs of
neoplasm, discharge, inflammation, mass, scarring or
extrusion of implant.
The examiner noted that the findings were normal for
prosthetic use and did not indicate any orbital problem. It
was further reported, however, that the veteran had a long
history of limited prosthetic use due to intolerance while
willfully attempting to comply with medical management, but
that this had not been successful. The examiner did not feel
that the problem could be medically or surgically corrected
and that it was at least as likely as not that the veteran
had an incompatibility that significantly reduced the ability
to wear an ocular prosthesis. The veteran had corrected near
and far vision of the right eye of 20/20.
In an April 2007 addendum, the examiner noted that there was
no active conjunctivitis of the right eye and there was no
active pathology or residual defects of previous
conjunctivitis.
Analysis: Enucleation of the Left Eye
The veteran has anatomical loss of the left eye. The medical
evidence of record reveals that he has corrected vision in
his right eye of 20/20. Under such circumstances, the
maximum rating is 40 percent. See Diagnostic Code 6066. The
veteran's enucleation of the left eye is currently rated 10
percent because of the RO's finding of pre-existing
disability in its original grant of service connection. In
cases involving aggravation by active service, the rating
will reflect only the degree of disability over and above the
degree existing at the time of entrance into the active
service, whether the particular condition was noted at the
time of entrance into the active service, or it is determined
upon the evidence of record to have existed at that time. It
is necessary therefore, in all cases of this character to
deduct from the present degree of disability the degree, if
ascertainable, of the disability existing at the time of
entrance into active service, in terms of the rating
schedule, except that if the disability is total (100
percent) no deduction will be made. 38 C.F.R. § 4.22.
The veteran contends, in essence, that he is unable to wear
his prosthetic left eye because of irritation and other
complications and, therefore, is entitled to an additional 10
percent rating. The Board agrees.
In his January 2007 opinion, a VA clinician opined that the
physical findings were normal for prosthetic use but noted
that the veteran had been trying to comply with medical
management. The examiner than provided an opinion that it
was at least as likely as not that the veteran has an
incompatibility that significantly reduces his ability to
wear the ocular prosthesis. While the examiner did not opine
that the veteran could not wear the artificial eye at all,
based on the examiner's finding that there was an
incompatibility and the veteran's credible assertions that he
cannot wear the prosthetic eye all day, the Board finds that
the veteran is unable to wear the artificial eye. In
essence, the veteran's inability to wear the artificial eye
for the length of time it is meant to be worn without
significant complications is tantamount to an inability to
wear the artificial eye, within the meaning of the applicable
rating criteria. Therefore, an additional 10 percent rating
is warranted, which results in a 20 percent rating for the
left eye. 38 C.F.R. § 4.84a, Diagnostic Code 6066. With
consideration of the 30 percent rating that the RO assigned
for the veteran's left eye disability that pre-existed
service, the Board finds that, as a result of the instant
Board decision, the veteran is in receipt of the maximum
rating allowed. See 38 C.F.R. §§ 4.22, 4.84a, Diagnostic
Code 6070.
As required by Schafrath v. Derwinski, 1 Vet. App. 589, 593
(1991), the Board has considered the potential application of
various provisions of Title 38 of the Code of Federal
Regulations, whether the veteran raised them, including
§ 3.321(b)(1), which governs extraschedular ratings. The
Board finds that the evidence of record does not present such
"an exceptional or unusual disability picture as to render
impractical the application of the regular rating schedule
standards." 38 C.F.R. § 3.321(b)(1). There has been no
showing by the veteran that his enucleation of the left eye
disability alone causes marked interference with employment
or necessitated frequent hospitalization beyond that
contemplated by the rating schedule. The Board
parenthetically notes that the veteran is in receipt of
special monthly compensation for loss of his left eye. In
the absence of requisite factors, however, the criteria for
submission for assignment of an extraschedular rating for
this disability pursuant to 38 C.F.R. § 3.321(b)(1) are not
satisfied. See Bagwell v. Brown, 9 Vet. App. 337 (1996);
Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
The veteran's claim for an increased rating for enucleation
of the left eye (with a history of pre-existing left eye
disease) is granted to 20 percent, but no more than 20
percent.
Analysis: Conjunctivitis
The veteran is service connected for conjunctivitis but it is
rated as noncompensable. The veteran has asserted that his
prosthetic eye caused congestion, irritation, and complained
of other symptoms of conjunctivitis of the eyelid.
Conjunctivitis is the inflammation of the conjunctiva,
generally consisting of conjunctival hyperemia associated
with discharge. See Dorland's Illustrated Medical Dictionary
409 (30th ed. 2003). There is no objective medical evidence,
however, that confirms that the veteran has had
conjunctivitis of either eye during the period under appeal.
See 38 C.F.R. § 4.84a, Diagnostic Code 6018. The medical
evidence has indicated that the conjunctiva were clear.
In the January 2007 VA examination, the examiner noted that
the conjunctiva of the left eye was normal and that this was
no sign of neoplasm, discharge, inflammation, mass, scarring
or extrusion. In the April 2007 addendum, the examiner found
no evidence of active conjunctivitis, active pathology or
residual defects of previous conjunctivitis of the right eye.
Further, the Board notes that the veteran's complaints of
pain and irritation in the left eye socket and eyelid were
taken into consideration in the finding that the veteran is
unable to wear his prosthetic eye. See 38 C.F.R. § 4.14. As
the disability is currently not active, the Board finds that
the criteria for submission for assignment of an
extraschedular rating for this disability pursuant to 38
C.F.R. § 3.321(b)(1) are not satisfied.
As the preponderance of the evidence is against the claim,
the benefit of the doubt doctrine is not applicable and the
claim for a compensable rating for conjunctivitis must be
denied. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.
3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App.
49 (1990).
ORDER
A 20 percent rating, but no more than 20 percent, for
service-connected enucleation of the left eye is granted,
subject to the rules and regulations governing the payment of
VA monetary benefits.
A compensable rating for service-connected conjunctivitis is
denied.
____________________________________________
R. F. WILLIAMS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs